careful scrutiny. A survey of New
Mexico uninsured lawyers revealed
that less than 18 percent performed
any pro bono work. 9 Oregon, which
has mandatory insurance, has
relatively high rates of pro bono
participation. 10 A survey of Nevada
uninsured lawyers revealed that
none indicated that the fact that they
represent clients pro bono was the
primary reason they were uninsured. 11

The WSBA’s Task Force on Mandatory
Malpractice Insurance has tentatively
concluded it will exempt from an
insurance requirement lawyers
providing services through nonprofit
entities, including pro bono services. 12

The claim that those who do lowbono work would have to raise theirrates also seems somewhat overstated.Assuming that LPL insurance costs

$3,000 annually in Washington—
which is a high estimate13—lawyers
would be required to charge
approximately $10 more per day to
pay for their LPL insurance.

Yet another argument against
an insurance requirement is that
it will make lawyers a “target” of
lawsuits. If lawyers mean that they
can avoid legitimate suits—because
other lawyers will not sue them—this
is a cynical reason for opposing
an insurance requirement. If they
are referring to frivolous suits, this
is harder to assess. One does not
hear about a problem with frivolous
malpractice lawsuits against insured
lawyers comparable to the claim in
the medical malpractice context. In
fact, legal malpractice can be very
difficult to prove because of the
case-within-a-case issue and other
challenges. Experienced plaintiffs'
malpractice lawyers do not like to
take cases if causation is not clear. 14

At worst, it may be that uninsuredlawyers who are required to carryinsurance will be sued because it willbe possible for their former clients tofind representation—but it would notbe unfair to lawyers if their clientswere better equipped to recover ontheir claims.

Of course, an LPL insurance
requirement does not guarantee
full redress for all clients. Minimum
insurance requirements may not fully
compensate those who are harmed.
But the average payment made by
LPL insurers for claims against solo
and small-firm lawyers appears to
be well under $100,000.15 So even
relatively low coverage limits would
cover most claims.

There are also advantages
to carrying LPL insurance that
are sometimes overlooked in this
debate. The mere process of annually
reapplying for coverage reminds
lawyers to consider the adequacy of
their calendaring, conflicts-checking,
and other systems. Insurers offer their
insured lawyers free CLE and other
risk management materials. They also
have hotlines and other means by
which lawyers can ask questions in
order to avoid malpractice claims.

WHY CHANGE THE STATUS QUO?

One might ask why Washington’s
insurance disclosure rule is not
sufficient to protect the public. That
rule requires lawyers to report to the
WSBA whether they carry insurance,
and that information is posted on
the WSBA website. One problem,
however, is that the public believes all
lawyers are insured. 16 Consequently,
they do not think to look for
information indicating whether a
lawyer carries insurance.

Moreover, even if clients find this
information, they do not understand
the implications. The public generally
thinks that lawyers are well-off and can
afford to pay judgments against them.

The WSBA website on insurancepromotes this view: it states that notall lawyers maintain LPL insuranceand that some do not because “thelawyer may choose to be financiallyresponsible (self-insured).” 17 Thisstatement fails to alert the public thatsome uninsured lawyers may not befinancially responsible. Nor does itexplain that they may be unable tofind another lawyer to represent themif they wish to bring a malpracticeaction against an uninsured lawyer.When debating the issue of aninsurance requirement, it is useful toremember that many lawyers declineto purchase insurance because theysimply prefer not to. They thinkthey work in low-risk practices.(Sometimes they are mistaken.)They think they are good lawyers.(Don’t we all?) They dislike insurancecompanies. (Ditto.) At the same time,the empirical evidence cannot ruleout the possibility that there may bea few lawyers who genuinely cannotafford LPL insurance if it is required.However, that number appears to bequite small.

Ultimately, the question the
WSBA faces comes down to who
should bear the risk of loss when a
lawyer makes a mistake: the lawyer or
the public? It’s time for Washington
lawyers to answer that question. NWL

2. Kritzer & Vidmar, supra note 1, at 171. The
cost of insurance in the Canadian provinces varies, ranging as high as CDN
$3,900 in Alberta. See James Careless,
Professional Liability Insurance: Not
Just an Unwelcome Expense for New
Lawyers, CBA PRACTICELINK, Jan.
13, 2016, https://www.cba.org/Publica-tions-Resources/CBA-Practice-Link/
Young-Lawyers/2016/insurance. In U.S.
dollars, that comes to $2,960.